Brewer v. Grogan , 116 Ga. 60 ( 1902 )

Little, J.

1. While the consideration of a promissory note, expressed in the words “ for value received,” is always open to inquiry, it is not competent by parol evidence to change the character of such an instrument in so far as it expresses a promise to pay.

2. Where in defense to an action upon a promissory note the defendant sets up, by way of set-off (though denominating his defense a plea of payment), open accounts against the plaintiff, which are on their face barred by the statute of limitations, it is erroneous to overrule a demurrer to such a defense, presenting the point that the same shows on its face that the defendant’s alleged cross-action is barred.

Judgment reversed.

All the Justices concurring, except Lewis, J., absent.

The plaintiff demurred to the pleas, on the ground, among others, that the payments therein set up were barred by limitation. The demurrer was overruled, and the plaintiff excepted. . Evidence was introduced, and there was a finding in the defendant’s favor. The plaintiff’s motion for a new trial was overruled, and to this ruling also he excepted. This motion alleged, among other grounds, that the court erred in admitting, over objection that it was not competent to vary the contract by parol, the following testimony of defendant : The plaintiff asked me to sign the note for the amount of lumber I bad got from the sawmill oa account of my half interest. I did not like to do this, but he insisted on it; so I signed the note. It appeared that I had received so much lumber from the mill, and to keep matters straight until I could return, when we were to have a final settlement, I gave plaintiff this note. The consideration of the note was lumber.

Z. B. Rogers and J. N. Worley, for plaintiff. George 0. Grogan, for defendant.